Wills
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Definition: A will is a legal document which allows you to choose who receives the rights to your belongings after you die. A will can also be used to assign a guardian for your children until they are capable of looking after themselves. Wills also allows you to choose a trusted person who will manage the distribution of your assets, also known as an executor. If you have not done any estate planning, your assets may be managed by a court-appointed professional, also known as an administrator. A will is usually in the form of a written statement and includes names of the people you want to benefit, called beneficiaries. When you have financial dependents, such as children, having a will can save the expense of arguments that may come up when a person dies without a will. Even if you own a few assets, it is worth making a will to ensure what will become of your assets when you die.
Consequences: A will is a way for you to tell others how you would like your assets and possessions to be dealt with and distributed after you die; therefore it is common for most people to have one. Your possessions include everything you own, such as your house, vehicles, land, insurance benefits, furniture, bank accounts, investments, jewelry, artworks, etc.
If you do not have a will and you die, which is known as “intestate�, rules of the law apply. In other words, the court will decide all matters of distribution for you. If you are intestate, the following may happen to you:
- If you are survived by your parents and you do not have a spouse or any children, your parents will generally receive all of your assets.
- If you are survived by a spouse, your entire estate will pass on to your spouse.
- If you are survived by a spouse and children, the courts will determine how your estate will be divided among your spouse and children.
- If you die and you are survived by brothers and sisters, and you do not have a spouse, children or parents, your estate will be divided equally amongst these brothers and sisters.
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What a Lawyer can do: Most wills can be written quite simply. Others may be more complex and involve more people, significant assets and considerable amounts of money. These wills should be discussed with lawyers who are experts in this particular area. Estate planning attorneys can help you draft a simple will or change an existing will to reflect your financial status.
Referral: Ensure safe and proper distribution of your assets to members of your family. Attorney Search Network will provide you with a lawyer that can provide you with assistance with wills and any concerns you have about allocating your estate. Your estate planning attorney can help you determine what your estate planning goals should be.
An overview on wills, wills drafting, attestation, revocation, and probate laws.
Will (law), in law, disposition by an individual of his or her property, intended to take effect after death. A disposition of real property by will is termed a devise; a disposition of personal property by will is termed a bequest. The person making a will, called the testator, must have testamentary capacity, that is, must be of full age and sound mind and must act without undue influence by others.
By statute in the U.S. and in England, a will is required to be in writing, whether it disposes of real or personal property; a soldier or sailor in combat, however, may make a will orally. In a number of jurisdictions in the U.S., an oral will is also valid when made by a testator during sickness that terminates in death, but it must be made at a point when, because of the apparent imminence of death, neither time nor opportunity exists to make a written will. The law usually provides that the contents of an oral will must be reduced to writing within six days after it was declared in the presence of the statutory number of witnesses, usually three. Such oral wills are termed nuncupative wills and may dispose only of personal property. A written will that is entirely in the handwriting of the testator is termed a holographic will and may dispose of real or personal property, or both. The statutes of some states in the U.S. recognize such wills as valid without formal execution or attestation, if wholly written, dated, and signed by the testator's own hand. A holographic will is valid only if it complies literally with the controlling statute.
Definition: Will drafting is the process of creating a will. Wills are the most common way for people to express how they would like to have their estates handled after their death. A well drafted will can significantly reduce tax burdens and make the property transfer more efficient. A will may be drafter from simple documents to elaborate dimensions depending on the size of the estate. The general rule on drafting a will is that it must be written. Some states all it to be handwritten, but some will only allow typed or pre-printed ones.
Consequences: By will drafting, you will ensure what happens to your assets following your death. If you die without having written a will, it means you have died intestate. A law of intestacy applies to your assets, meaning it will be divided between your spouse and your blood relatives. If you have not survived by any relatives, your assets will be given to the government.
What a Lawyer can do: Wills can get complicated and consulting someone for legal advice can come in handy. You should consider contacting an attorney if you are faced with the following situations:
- If your estate includes business/partnership interests
- If you are planning a trust alongside your will
- If you suspect your benefactors to contest your will after you die
- If your estate’s gross value goes beyond the federal estate tax exemption amount
Referral: Speak to an experienced estate planning attorney. They can advise you about any problem you may encounter while drafting a will and guide you through the legal process.
A written will must be signed at the end; a testator unable to write may make an X, and such a mark is considered a valid signature. In the U.S. generally, two, and in some states three, persons must witness the will, that is, they must sign the will as witnesses to the signature of the testator. In most states the signing must be done in the presence of witnesses, and the testator must state that the document being signed is his or her will. The witnesses need not be acquainted with one another and may sign at the same time or at separate times, depending on the statutory requirements of the state in which the will is executed; thus, the signature may, in most states, be written in the presence of one witness and acknowledged later by other witnesses.
All witnesses to a will must be "competent." A witness is considered incompetent if he or she is a beneficiary under the instrument; if one of the necessary witnesses is a beneficiary, the will is void. To remedy such situations it has generally, although not universally, been provided by statute that a bequest to a subscribing witness shall be void and that the will shall otherwise be valid.
An attestation clause, or a clause certifying the proper execution of the will, must usually be added after the testator's signature. The following is a simple form of such a clause:
Signed, sealed, published, and declared by Jane Doe, the testator, as her last will and testament in the presence of us, who at her request and in her presence and in the presence of each other have hereunto subscribed our names as witnesses.
A.B. residing at 1000 X Street, Blank City
C.D. residing at 1100 X Street, Blank City
As a rule, no particular form is prescribed by the various statutes for the preparation of a will so long as the testator's intent is in writing.
A will is revocable until the testator's death. The only exception to this occurs when two parties simultaneously make mutually irrevocable wills in which they name one another as their respective beneficiaries and expressly give up the right to revoke their wills. A testator may revoke his or her will by destroying it, either by burning or tearing it up, or by obliterating the signature. Any part or the whole of the will may be revoked by a codicil, or an amendment to the will, executed with the same statutory formalities as the will itself.
A valid later will revokes a prior will. Disposition of property by the testator before death, as by gift or sale, is not a revocation of the will, although its effect may be similar to one.
Marriage of the testator subsequent to the date of execution of the will revokes the will as to the surviving spouse or children, who are entitled to the same rights in the estate as if the testator had died intestate, that is, without leaving a will.
Definition: Probate is the process of transferring the legal title from the estate of a deceased person to his or her appointed beneficiaries. The term “probate� means “proving� who one’s legal beneficiaries are in a valid will or determining who one’s legal beneficiaries are if there is no will. In other words, probate is the process that determines who gets the deceased person’s property. If a person dies without a will, or intestate, the probate court appoints someone to receive all claims, pay creditors and distribute property.
Consequences: Probate can be costly and it can be a lengthy process. The size of the estate, where it is taking place, the creditors involved and objections to the will can change the length of the probate process. If there is no will, the probate process becomes more complicated. The state then decides who the beneficiaries will be and what assets the will be allocated to them. Some assets do not go through probate and are considered exempt, such as assets that are in living trust. People often try to avoid probate because of costs, time and stress.
What a Lawyer can do: Probate is a formal procedure and a simple mistake such as missing a deadline or failing to send a copy of the petition to a family member can be costly. Also, the death of a family member or close friend can create disagreements and arguments among people. A probate lawyer can discuss if simplified procedures are appropriate or if going through a regular probate process, when there are debts against the estate, is the right way to go.
Referral: If you would like more information on probate and estate administration and how to avoid costly probates, seek the advice of a professional probate attorney.Â
No disposition of an estate is made after the testator's death until the will is probated. The probate of a will is a court proceeding up on notice to the heirs and next of kin. Questions frequently arise about the construction of the terms of a will. The most important rule of construction is that the intention of the testator as it appears from the will shall be carried out whenever legally possible; when the will is ambiguous, the circumstances surrounding its execution may be examined in order to ascertain the testator's intention.
The statutes of each state must be consulted as to restrictions on a testator's disposition of his or her property by will. In many jurisdictions a will may not exclude a surviving spouse. The degree of participation of the spouse in the estate varies from state to state. Many jurisdictions, however, permit a person to exclude children from participation in the estate.
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